Election Corner – guest post

[By way of a sneak preview of the next Mental Capacity Report to be published shortly, I reproduce here as a guest post an article written by my colleague Annabel Lee summarising the key proposals in the three main English parties’ manifestoes of relevance to the mental capacity/social welfare sphere.]

Social welfare issues have received more attention than might have been anticipated in the run up to the general election. There has been much heated debate in the media with headline grabbing stories about Theresa May’s “dementia tax” U-turn. Here we consider what the three main parties in England are promising in their manifestos that may be of interest to our readers and the implications after the next election.

In their last manifesto in 2015, the Conservative Party pledged to “cap charges for residential social care from April 2016… so no one has to sell their home”. Their commitment was to limit an individual’s lifetime liability for care costs to £72,000. It followed a report from the Dilnot Commission in 2011 which recommended a cap on care costs at £35,000. In July 2015, just two months after the general election, the Conservative government announced that the cap on care costs would be delayed until April 2020. The Conservative Party manifesto, published on 18 May 2017, conspicuously made no mention of the cap on care costs. Instead, it proposed three main changes to our system of care for the elderly:

1. Means-testing for domiciliary care would include the value of the family home;

2. Raising the means test threshold from £23,250 to £100,000;

3. Extending deferred payments for residential care to those receiving care at home.

The Health Secretary, Jeremy Hunt, appeared to confirm on the BBC Radio 4 Today programme that the Conservative Party was indeed dropping the proposed cap on care costs. However, after days of speculation and outrage over this so-called “dementia tax”, Theresa May announced on 22 May that there would be an “absolute limit” on the amount that people would have to pay for their care. However, she did not confirm any figures but said that this would be the subject of consultation in a Green Paper after the election.

It is welcome news that the Conservative Party remains committed to introducing a cap on care costs, as well as raising the asset threshold in the means test, which were both central recommendations of the Dilnot Commission in 2011. However, the lack of detail regarding the level of the cap and when it will come into effect is unnerving. Indeed, the promise of a Green Paper after the election may suggest that earlier policies are being reconsidered.

Both the Labour Party and the Liberal Democrat Party have expressly committed to implementing the lifetime cap on care costs in their manifestos. The Labour Party also intends to increase the asset threshold in the means test but no precise figures are given. However, the Labour Party has pledged to increase social care budgets in the short term (by £8 billion over the lifetime of the next Parliament) and to build a National Care Service alongside the NHS in the long term with joint working arrangements. Better integration between health and social care services has been an aspiration for successive governments but it remains a challenge to envisage the two systems operating symbiotically without more fundamental reforms especially to address practical problems arising from the funding crisis.

All three manifestos are varyingly vague about how the fundamental problem of funding and resources for health and social care in this country is going to be resolved. In relation to mental health, the Conservative Party manifesto commits to recruiting up to 10,000 more mental health professionals. It is not at all clear where these mental health professionals will be drawn from especially with the impact that Brexit might have on the health and social care workforce. The Conservative Party has also pledged to reform the Mental Health Act 1983 but precisely how remains unclear:

The current Mental Health Act does not operate as it should: if you are put on a community treatment order it is very difficult to be discharged; sectioning is too often used to detain rather than treat; families’ information about their loved ones is severely curtailed – parents can be the last to learn that their son or daughter has been sectioned. So we will introduce the first new Mental Health Bill for thirty-five years, putting parity of esteem at the heart of treatment.

Community Treatment Orders (CTOs) were of course introduced by the Mental Health Act 2007 with the aim of reducing readmission to in-patient hospital care. Although parity of esteem is a laudable aim, it is not at all clear how we would get there under the new Mental Health Bill which would appear to include reform to CTOs, sectioning and the provision of information, but provides little very little detail on complex issues of balancing patients’ rights to autonomy and risks of harm.

The Labour Party has committed to ring-fencing mental health budgets and ensuring that funding reaches the frontline. The manifesto focuses particularly on the interests of children and young people by promising that children will no longer be treated on adult wards and ending out-of-area placements by 2019. There would also be access to a counselling service for all children in secondary school. There can be little doubt that achieving these aims within existing mental health budgets will be challenging and may have to come at the expense of funding for other much needed services.

The Liberal Democrat Party has committed to providing an extra £1 billion funding for mental health services which would be drawn from their 1p rise on income tax rates. The extra investment would be used to fund increase access to talking therapies, reform perinatal mental health, explore introducing a dedicated service for children and young people, roll out access and waiting time standards, and end out-of-area placements. In the long term, the Lib Dem Party would introduce a dedicated health and care tax (possibly based on reform of National Insurance) which would bring together spending in both service streams.

There are commendable proposals in all three manifestos but the biggest challenge, as ever, appears to be ensuring adequate funding to sustain these well-intentioned policies. The Labour Party, which (when in Government) signed the UN Convention on the Rights of Persons with Disabilities (CRPD), is the only one of the three mainstream parties that has committed to incorporating the CRPD into UK domestic law. Not only would such a proposal entail a large spending commitment, it would also have significant implications on substantive areas of law including aspects of the Mental Capacity Act 2005. Those interested in reading more about the substantive aspects of the MCA and CRPD may want to read this discussion paper: as well as the reports of the Essex Autonomy Project to which Alex has contributed. We recall also that the report of the UN Committee on the Rights of Persons with Disabilities in 2016 found that there had been “grave or systemic” violations of the CPRD in the UK (the report, and the follow-up, can usefully be accessed here).

— (1) There is no power to impose conditions in a CTO which have the effect of depriving a patient of his liberty. (2) The patient's situation may be relevant to the tribunal's discharge criteria, and the tribunal may explain the true legal effect of a CTO (for the RC to act on that information), […]

— See Court of Protection User Group for information about the group. Contact Tolu Somade, Business Support Officer to HHJ Hilder (tolulope.somade@Justice.gov.uk) to confirm attendance at the meeting. Time: 2pm. Note change of date (previously was 23/4/19)

— "This case came before me on 23 April 2018 for the purpose of considering whether to approve the proposed settlement of a personal injuries action reached between the Claimant's Litigation Friend (his mother) and the Third and Fourth Defendants. The settlement required the approval of the court pursuant to CPR Part 21.10 because the […]

— "The Registrar of Criminal Appeals has referred this application for permission to appeal against conviction and sentence to the Full Court. The application concerns the scope of the offence created by s 44(2) read, in this case, with s 44(1)(b) of the Mental Capacity Act 2005 ('MCA 2005) of which the Appellant was convicted. […]